N. Trust Co. v. Snyder

• Decision Date: 11 March 1902
• Citation: 89 N.W. 460,113 Wis. 516
• Parties: NORTHERN TRUST CO. v. SNYDER, SHERIFF.
• Court: Wisconsin Supreme Court

113 Wis. 516

89 N.W. 460

NORTHERN TRUST CO.

v.SNYDER, SHERIFF.

Supreme Court of Wisconsin.

March 11, 1902.

Syllabus by the Judge.

1. A member of a corporation, in his own behalf and that of all other persons similarly interested, may, in an equitable action, enforce a right of such corporation for its benefit when otherwise that right would be lost or impaired, to its damage.

2. It is essential to an equitable suit of the nature spoken of in the preceding paragraph, to allege in the complaint facts indicating to a reasonable certainty that the corporate officers, upon whom the primary right and duty to act rests, will not perform that duty.

3. The necessary showing to satisfy the rule stated in the foregoing paragraph may be made by allegations to the effect that the corporate officers have refused or neglected to perform their duty, or by alleging a state of facts indicating that they are so concerned in the wrong to be redressed, or, for some other reason, are so hostile to any attempt being made to vindicate the corporate right, that it is not reasonable to expect that they will perform their duty.

4. The rule stated in the foregoing paragraph does not apply to an action for mere preventative relief,--a suit to prevent the corporation or its officers from violating the law under which it is organized. Every member of a corporation has a right, of a primary nature, in respect to such matters, and may institute a suit to vindicate it.

5. When a member of a corporation institutes a suit to enforce his own right of a primary nature, matters which might constitute an independent cause of action, falling under the rule first stated, may be joined therewith if so closely connected therewith as to form a part of the primary right under the rules governing suits in equity. In that event the right of the corporation may be litigated as an incident to the litigation of the primary right of the plaintiff, and without any previous demand on the corporate officers to perform their duty in the matter.

6. The right of a taxpayer to insist upon a return to the public treasury of money wrongfully taken therefrom ostensibly to compensate for official services, is not affected by laches on his part if the corporation, in respect to its legitimate corporate duties, has not received any consideration for such money, or the recipient thereof was bound in any event to perform the service, taking such compensation therefor as was incident to his office.

7. If a general law be enacted pertaining to county government, giving an option to county boards to severally put the same into effect in their respective counties, but giving no power to repeal their action and restore the former situation, such boards possess the special power of adoption and no other. Having given effect to the law in a county, its board cannot abolish such effect.

8. Parol evidence of the members of a legislative body, as to what they intended in the passage of a law or resolution, is not competent on the question of legislative intent.

9. Section 694a, Rev. St. 1898, authorizes county boards severally to change the method of compensating sheriffs from the fee to the salary system, but not to change back to the fee system.

10. The authority possessed by a county board having limited legislative powers to adopt and rescind resolutions, pertains to the matters within its general local control, not to the exercise of any special power.

11. A county board has no jurisdiction to act upon a claim unless the same is made out and presented pursuant to section 677, Rev. St. 1898.

12. A sheriff cannot perform any duty, as such, outside the state, hence all fees prescribed by law for the compensation of sheriffs relate to duties performed within the state.

13. Counties have no corporate duty to perform in respect to the arrest and prosecution of offenders against the criminal laws of the state. The services of the sheriff in the execution of the criminal laws of the state are performed for the state, and his compensation is fixed by the state, to be paid by the county.

14. Subdivision 27, § 731, Rev. St. 1898, entitles a sheriff to 10 cents per mile for travel to serve a criminal warrant only when that travel is successful, and on the particular trip which results in the service. He is not entitled to compensation for unsuccessful trips to serve criminal warrants, whether in the end service is made or not, except under subdivision 34 of section 731, Id.

15. Where a duty is imposed upon a sheriff by law, and his compensation is fixed thereby, and a similar duty is imposed by another statute, which provides that he shall receive compensation therefor but does not fix the rate thereof, the rule is to regard the compensation where fixed as indicating the legislative measure, and to follow it in the absence of anything to indicate that it was not intended to be such a guide.

16. Since in all instances where a sheriff is required to execute commitments to charitable and penal institutions, it is provided that he shall be compensated for his personal services on the basis of time actually and necessarily employed, and the rate is generally fixed at $5 per day, that should be taken as the legislative measure of compensation for similar services where the rate is not prescribed, in the absence of anything indicating that a larger compensation should be paid.

17. Since the statute allows compensation to a sheriff for expenses of assistance in executing a commitment to the state prison only when he has a certificate of necessity therefor under section 677, Rev. St. 1898, a county board has no authority to otherwise make such an allowance.

18. A day's time, in the performance of official duties, includes all the time in which the officer may be so engaged in a single calendar day. A county board has no authority to allow compensation upon any other theory, in the absence of a statute expressly authorizing it.

19. Where the amount to be paid for official services is left to the discretion of an auditing board and it acts beyond its jurisdiction, ordinarily a court having to deal with the matter should declare such action void but leave the board to thereafter exercise a legal discretion; but in an equitable suit, where such an act, being called in question, is declared void, the court may properly determine what compensation is equitable, and settle the whole matter as part of its equity administration therein.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by plaintiff in his own behalf as a taxpayer of Douglas county, and in behalf of all other persons similarly situated, to restrain such county from paying certain sheriff's bills for services and expenses, theretofore audited by its county board, upon the ground that the county was not liable therefor, and to obtain an accounting as to moneys paid said sheriff to which he was not entitled, and to recover the same for such county. At the commencement of the trial it was decided that evidence of the details of bills should be omitted till a decision should be reached as to whether any of them, paid or unpaid, were illegal, and that if any were so found, evidence should then be taken to enable the court to properly state an account between the county and the sheriff, charging him with money to which he was not entitled and crediting him with what he was entitled to and with the legal portion of the unpaid bills.

The findings, omitting formal matters, and all matters not material to the decision of the cause, are in brief as follows: In 1895 Douglas county, by appropriate action of its board, changed the method of compensating its sheriff for services rendered, for which the county was liable, except for keeping and maintaining prisoners in the county jail, from the fee to the salary system. At the time for fixing the salaries of the county officers to be elected in 1898, the county board resolved that the sheriff to be elected “shall receive no salary or allowance by way of salary or otherwise from Douglas county.” No other action than the passage of such resolution was taken to change the system of compensating the sheriff back to the fee system. The defendant was elected sheriff for Douglas county for the term commencing in January, 1899, and he served during the whole of such term. Bills for services and expenses were audited in his favor by the county board to the amount of $52,880.40, about two-fifths of which have not been paid. He supposed, when elected and during his term of office, that the action of the board in 1898 restored the fee system of compensating the sheriff. The paid and unpaid bills include charges of the following nature: $1.50 per case for attending municipal court of Douglas county with prisoners arrested on criminal warrants, the attendance in each case not exceeding one-half day; 20 cents for travel in each of several vagrancy cases, the warrant being served in each case after the accused had been taken into the custody of some police officer, and the travel in each case being about one mile; pursuing criminals outside the state of Wisconsin in numerous cases, in some instances the accused persons being apprehended and brought back to Douglas county for trial, and in some not so brought back; in the latter cases the charges for services being made on the per diem basis of $5 per day and expenses for all services outside the state, except in a few instances where the charges were on a mileage basis of 10 cents per mile; pursuing criminals outside the state, where the offenders were brought back, the charges being on the basis of per diem fees and expenses for services outside the state, and on a mileage basis to and from the state line, each bill being certified by the district attorney, as to the necessity for the pursuit and the reasonableness of the charges; obtaining the attendance of witnesses from without the state; unsuccessful pursuit of witnesses on...